THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

PROJECT

on

Lt. Col. Nitisha v Union of India

<https://main.sci.gov.in/supremecourt/2020/20645/20645_2020_35_1501_27144_Judgement
_25-Mar-2021.pdf> accessed 2 October 2021, decided on 25 March 2021.

submitted by
Zain Khan
Enrolment Number: A-2295
Roll Number: 2020BALLB122
I Semester
B. A. LL. B. (Hons.)

submitted to
Prof. (Dr.) Ghayur Alam
Date of submission: 15 November 2021
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DECLARATION

I, Zain Khan, daughter of Shaheen Praveen, Roll Number 2020BALLB122, Enrolment

Number A-2295 do hereby declare that the Project titled “Lt. Col. Nitisha v. Union of
India” is an outcome of my own independent research endeavour and has been carried out
under the guidance of Prof. (Dr.) Ghayur Alam. Literature relied on by me for the purpose
of this Project has been fully and completely acknowledged in the footnotes and
bibliography. The Project is not plagiarized and all reasonable steps have been taken to avoid
plagiarism. Similarity Index as per the Turnitin Report is____%. In case, my project is found
to be plagiarized, the course teacher shall have the full liberty to ask me to revise the Project.
If I fail to comply with the instructions of the teacher, my project may be referred to the
Committee Against Use of Unfair Means and I will comply with the decision of the said
Committee.

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TABLE OF ABBREVIATIONS

ACRs Annual Confidential Reports

GI General Instructions

Ors. Others

PC Permanent Commission

SC Supreme Court

SSC Short Service Commission

v. Versus

WSSCOs Women Short Service Officers

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TABLE OF CONTENTS

DECLARATION........................................................................................................................i

TABLE OF ABBREVIATIONS...............................................................................................ii

NAME AND DATE OF THE JUDGMENT.............................................................................1

NAME OF THE JUDGES.........................................................................................................1

BENCH......................................................................................................................................1

NUMBER OF OPINIONS.........................................................................................................1

JUDGMENT DELIVERED BY................................................................................................1

CONCRETE FACTS OF THE CASE.......................................................................................1

IMMATERIAL FACTS OF THE CASE...................................................................................3

MATERIAL FACTS OF THE CASE........................................................................................4

GENERALISATION OF THE MATERIAL FACTS OF THE CASE.....................................5

QUESTION OF LAW................................................................................................................5

ARGUMENTS OF PETITIONER(S)........................................................................................5

ARGUMENTS OF RESPONDENT(S).....................................................................................6

ARGUMENTS OF THE INTERVENER(S) OR AMICUS.......................................................7

JUDGMENT IN PERSONAM...................................................................................................8

JUDGMENT IN REM................................................................................................................8
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NAME AND DATE OF THE JUDGMENT

Name of the judgement: Lt. Col. Nitisha & Ors. (Petitioners) v. Union of India & Ors.
(Respondents)

Decided on: 25 March 2021

Citation: 2021 SCC OnLine SC 261

NAME OF THE JUDGES

Justice Dr. Dhananjaya Y Chandrachud

Justice M R Shah

BENCH

The judgment was delivered by a Division Bench.

NUMBER OF OPINIONS

There was a unanimous opinion.

JUDGMENT DELIVERED BY

The unanimous opinion was delivered by Justice Dr. Dhananjaya Y Chandrachud.

CONCRETE FACTS OF THE CASE

The following are the concrete facts of the judgment:

I. The current petition was brought to question the manner in which the earlier decision
of the SC in Secretary, Ministry of Defense v. Babita Puniya was implemented.1 The
SC admitted the current petitions under Article 32 of the Indian Constitution.

1
Ministry of Defence v. Babita Puniya & Ors., (2020) 7 SCC 469.

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II. The procedure laid down for the selection of male officers for Permanent Commission
(PC) in the General Instructions (GI) was being applied to Women Short Service
Officers (WSSCOs), without making any suitable modifications.
III. WSSCOs, who were in the age group of 45-50 years, were required to conform to
medical standards of the level that applied to male officers when they were granted
PC, i.e. when they were 25-30 years of age.
IV. Male officers who were granted PC in their 5 th or 10th year of service continue to serve
in the Army regardless of the fact that they may have undergone physiological
changes over the years. Once PC was granted, there was no repeated medical scrutiny
for them.
V. WSSCOs had undergone the necessary medical board’s examination when extension
of services was granted to them in their 5 th, 10th or 14th years of service. They were
found to be fit to continue in service.
VI. For evaluating a candidate for PC, Annual Confidential Reports (ACRs) were
considered. The application of this criterion for petitioners was erroneous as the
ACRs for these WSSCOs were prepared at the time when there was no policy for
considering women officers for PC.
VII. Moreover, ACRs of WSSCOs were either filed casually or some columns were never
filled as WSSCOs were not eligible to be considered for PC. The manner of
evaluating ACRs of women officers was different from that of male officers.
VIII. In a total of 32 batches of SSC Officers, a total of 615 women officers were
considered for PC. The batch-wise details of PC granted to male officers were also
submitted.
IX. The following Policies, Army Orders and Circular were submitted to and considered
by the Court:
1. General Instructions (GI) issued by the Integrated Headquarters of MoD
(Army) Extracts
a) A Special No. 5 Selection Board 2020 will be held to screen the Short
Service Commission WOs (WSSCOs)
b)Special No. 5 Selection Board 2020 was conveyed between 14 and 25th th

Sep’20 to consider WSSCOs for the grant of PC.

c) As per the counter affidavit filed the selection was “on the same terms
and criterion as their male counterparts”.
d)615 WSSCOs were considered for the grant of PC.
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e) The result of the Special No 5 Selection Board was declared on 19 th

Nov’20.
2. The GI stipulated that only those officers who were in SHAPE-1 would be
granted PC.
a) The requirement of being in SHAPE-1 is a prerequisite for even in
respect of services, where the joining age is up to 45 years.
b)Temporary Low Medical Category (TLMC) is called category
stabilization period where an officer is given a period of one year for
stabilization of their medical category.
c) Permanent Low Medical Category (PLMC), should not be due to
medical reasons but should be a result of casualties suffered in action
during operation or due to injury or other disability sustained during the
course of duty.
3. The Medical criteria for the grant of PC are governed by Special Army
Instructions dated 30 Apr’70, as amended from time to time.
th

a) According to the Union of India, “the criteria of medical fitness

applied for a grant of permanent commission, are exactly the same as
applicable to other officers”.
4. A total of 86 petitioners were involved in the writ petitions.
a) Out of Total 86 petitioners, 55 are still in SHAPE-1, 23 others have
been placed in PLMC, remaining 9 have been placed in TLMC.
5. Substantive Assessments for PC
a) Special Army Instruction – SAI 3/S/70
b) Army Order 110/1981
c) MoD Policy Letter dated 30 September 1983
d) Army Order 18/1988
e) MoD Policy Letter dated 15 January 1991
f) MoD Policy Letter dated 20 July 2006
g) Army Order 9 of 2011 Appendix C & D
h) MoD Policy Letter dated 24 February 2012

IMMATERIAL FACTS OF THE CASE

The immaterial facts of the case were:

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I. Classification of writ petitions filed by WSSCOs into various categories.

II. The provisions on medical categorization into Temporary Low Medical Category
(TLMC) and Permanent Low Medical Category (PLMC).
III. Non-announcement of vacancies to be filed by Special No. 5 (the selection board
appointed for implementing SC directive), as the ceiling of vacancies for WSSCOs
special selection was waived as a one-time measure,
IV. MoD policy capping the number of vacancies per year for PC at 250, as the norm was
flouted, in multiple years, by the Special Selection Boards itself.

MATERIAL FACTS OF THE CASE

The material facts of the case were:

I. The procedure laid down in the General Instructions (GI), which was drafted for male
officers, was applied to WSSCOs without making any suitable modifications.
II. WSSCOs, who were in the age group of 45-50 years, were required to conform to
medical standards of the level that applied to male officers when they were granted
PC, i.e. when they were 25-30 years of age.
III. Women officers opting for PC were being benchmarked to the lowest-scoring male
officer.
IV. Male officers who were granted PC in their 5 th or 10th year of service continue to serve
in the Army regardless of the fact that they may have undergone physiological
changes over the years. Once PC was granted, there was no repeated medical scrutiny
for them.
V. WSSCOs had undergone the necessary medical board’s examination when extension
of services was granted to them in their 5 th, 10th or 14th years of service. They were
found to be fit to continue in service.
VI. Considering Annual Confidential Reports (ACRs) as the basis for evaluation of PC is
flawed, as ACRs of women officers were prepared at the time when there was no
policy for considering women officers for PC.
VII. ACRs of WSSCOs were either filed casually or some columns were never filled as
WSSCOs were not eligible to be considered for PC.
VIII. The manner of judging and grading of ACRs for women officers was different from
that of male officers.

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IX. The submitted details of PC granted to male officers showed that in many years,
either a) the ceiling of 250 officers for granting PC was not met and the number was
below the same or b) in certain years, the ceiling of selecting 250 PC, within a year,
was crossed for the male officers. This indicates that this policy has not been applied
as a rigid norm by selection boards.

GENERALISATION OF THE MATERIAL FACTS OF THE CASE

Various guidelines, orders, policies and/or procedures laid down by the Union of India, the
Army and/or its agencies, for the selection of officers for Permanent commission or for
extension in services or for granting of benefits under the service contracts or for any related
activities, were unjust and their interpretation and implementation were biased and
preferential to male officers.

QUESTION OF LAW

The question of law in this case, as identified by the court is “… whether the procedure which
was followed [by the Union Government to implement the decision of the Court in the Babita
Puniya case] in evaluating the women SSCOs comports with the requirement of law”?

ARGUMENTS OF PETITIONER(S)

The Petitioners, through their respective counsels, made the following submissions:

I. The procedure laid down in the General Instructions (GI), which was drafted for male
officers, was applied to WSSCOs without making any suitable modifications.
II. WSSCOs, who were in the age group of 45-50 years, were required to conform to
medical standards of the level that applied to male officers when they were granted
PC, i.e. when they were 25-30 years of age.
III. Women officers opting for PC were being benchmarked to the lowest-scoring male
officer.
IV. Male officers who were granted PC in their 5 th or 10th year of service continue to serve
in the Army regardless of the fact that they may have undergone physiological
changes over the years. Once PC was granted, there was no repeated medical scrutiny
for them.

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V. WSSCOs had undergone the necessary medical board’s examination when extension
of services was granted to them in their 5 th, 10th or 14th years of service. They were
found to be fit to continue in service.
VI. Considering Annual Confidential Reports (ACRs) as the basis for evaluation of PC is
flawed, as ACRs of women officers were prepared at the time when there was no
policy for considering women officers for PC.
VII. ACRs of WSSCOs were either filed casually or some columns were never filled as
WSSCOs were not eligible to be considered for PC.
VIII. The manner of judging and grading of ACRs for women officers was different from
that of male officers.
IX. Lack of announcement of vacancies against which PC would be granted to women
officers. The announcement of vacancies in each batch/service is necessary for an
officer to make an informed choice of opting for PC.

ARGUMENTS OF RESPONDENT(S)

The Respondents, through their respective counsels, made the following submission:

I. Respondents submitted that petitioners should have approached the Armed Forces
Tribunal with their statutory grievance rather than the SC through a writ petition,
under Article 32.
II. Consequent to the decision of SC in Babita Puniya Judgement, the respondents
formed a Selection Board to consider women for PC.
III. The petitioners while seeking parity with their male counterparts in service were not
adhering to eligibility criteria for obtaining PC.
IV. GI dated 01 August 2020 are administrative instructions based on the provisions of
the SAI 3/S/70 and AO 110/1981, which have not been challenged by the petitioners.
V. The assessment of the medical criteria of a candidate is an intrinsic and inseparable
part of the process for the grant of PC. It applies to men and women alike.
VI. The stringent requirements of SHAPE-1 can be relaxed in the event candidates have
suffered injuries on the line of duty which renders a low medical categorization
permissible but not otherwise.
VII. No SSC officer has ever been denied an extension of service due to medical reasons.
Therefore, the comparison with the petitioner’s medical fitness levels at their 5th or

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10th year of service is baseless, since extensions were never denied on medical
grounds;
VIII. The contention that medical fitness cannot be expected forever in service lacks merits.
The Army accounts for physiological changes occurring during childbirth and time
waivers are provided in accordance with existing policies. Other physiological
changes such as obesity and age are independent of gender.
IX. The respondents have complied with the directions of the SC in Babita Puniya
Judgement and had selected 365 women for PC.
X. The Court, in conformity with the spirit of Article 33, should not interfere with the
medical yardsticks for determination of PC as this could be detrimental to the selected
officers and the Army cannot afford to comprise on the rigour of its fitness policies;
XI. The Respondents submitted that the MoD, by its letter dated 15 January 1991 had
provided that a maximum of 250 SSC officers would be granted PC every year, with a
minimum cut-off grade of 60%. In case more than 250 officers would make the grade,
then only 250 posts would be granted based on competitive merit.
XII. No male officer has been granted PC merely by virtue of qualifying for the 60% cut-
off.
XIII. This policy and cap of 250 vacancies were relaxed for the Special No. 5 Selection
Board proceedings, in order to implement Babita Puniya (supra), in letter and spirit.
XIV. As per the Army rule, as the PC has to be granted on competitive merit,
benchmarking WSSCOs against the merit of the last selected officer with the lowest
merit in that particular year is a rational policy.
XV. The ACRs are merely one component of the evaluation for PC, which also includes
other factors of (i) honours and awards; (ii) performance on courses; (iii)
recommendations for PC; (iv) disciplinary awards; and (v) strong and weak points.
XVI. In terms of the erstwhile policy dated 15 January 1991 and the existing policy dated
24 February 2012, competitive merit has to be seen inter se officers under
consideration for grant of PC.
XVII. The petitioners in Babita Puniya Judgment had contended that the consideration of
ACRs for the first 5/10 years of service was a just and valid criterion for granting PC.
Belatedly requesting for the entire career record to be considered would be contrary to
applicable policies and the directions in Babita Puniya (supra).

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ARGUMENTS OF THE INTERVENER(S) OR AMICUS

There was no Intervener or Amicus.

JUDGMENT IN PERSONAM

I. The judgment found that benchmarking WSSCOs against the male officers with the
lowest merit is arbitrary and irrational and shall not be enforced while implementing
the decision of the Honourable SC in Babita Puniya case.
II. All WSSCOs who have fulfilled the cut-off grade of 60% in the Special Selection
Board shall be entitled to the grant of PC, subject to them meeting medical criteria
prescribed by the GI dated 1 August 2020 and receiving discipline and vigilance
clearance.
III. Medical criteria prescribed by the GI dated 1 August 2020 shall be applied: a) at the
time of the 5th year of service; or b) at the time of the 10th year of service; as the case
may be
IV. WSSCOs who were granted PC shall not be disturbed.
V. WSSCOs who were not considered eligible for the grant of PC after the above
exercise will be extended one-time benefits under directions in Babita Puniya
judgment.
VI. The method of evaluation of ACRs and the cut-off must be reviewed for future
batches.
VII. All serving WSSCOs shall continue in service and be entitled to the payment of their
salaries and to all other service benefits, until the implementation of the above
directions of the SC.

JUDGMENT IN REM

The selective evaluation resulted in indirect and systematic discrimination.

The evaluation criteria set by the Army (the Government or the employer) constituted
systematic discrimination against the Petitioners and the pattern of evaluation deployed by
them, to implement the directions given in Babita Puniya judgment, disproportionately
affects women vis a vis their male counterpart. That indirect and structural discrimination
could be attributed to the structural discrimination against the women perpetuated through

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inherent patterns of discrimination that were produced as a consequence of casual grading

and skewed incentive structures. The discrimination has caused economic and psychological
harm and affront to the dignity of women SSC Officers.

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